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Refugees

AI Canada's Submission to the Standing Committee on Citizenship and Immigration: Regulating for Safety

AMNESTY INTERNATIONAL'S
COMMENTS WITH RESPECT TO THE
Regulations Amending the Immigration
And Refugee Protection Act and
Consequent Designation of the United
States as a Country that Complies with
Article 33 of the Refugee Convention and
Article 3 of the Convention Against Torture

Submission to the Standing Committee on
Citizenship and Immigration

November 19, 2002

Amnesty International has followed with concern the development of the Agreement between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries. The Agreement, which has been approved by the Federal Cabinet in Canada, and which awaits final approval by U.S. authorities, is based on the premise that refugee claimants should be required to make their claims in the first "safe" country they reach. Further to that agreement, the Canadian government now intends to designate the United States as such a "safe" country, asserting that it is a country that complies with Article 33 of the Refugee Convention and Article 3 of the Convention against Torture.

Amnesty International does not object to governments entering into agreements to share responsibility for or cooperate in refugee protection. However, we insist that governments not enter into agreements which put refugees at risk of being denied protection or experiencing serious violations of their fundamental rights. We note in that regard as well that Canada's new Immigration and Refugee Protection Act (s. 102(2)(c)) highlights that a country's human rights record is a factor that must be considered in designating it to be a "safe" country. Amnesty International has carefully monitored the U.S. system of refugee protection for more than twenty-five years. We have issued numerous reports drawing attention to aspects of the system that do not meet international human rights and refugee protection standards. Currently that includes serious concerns regarding the U.S. approach to detention of refugees and refugee claimants, treatment of gender-based refugee claims and handling of claims made by individuals lacking proper documentation.

While the present agreement was being negotiated Amnesty International submitted information to the Canadian government, documenting the widespread, arbitrary use of immigration detention in the U.S., including of refugee claimants and refugees. In many instances detention is mandatory, including anyone arriving in the United States by boat and anyone arriving with fraudulent or no travel documents. Detention often continues for lengthy, even indefinite periods, with no sense as to when it will come to an end. U.S. authorities have frequently underscored that detention is used in this way as a means of deterring other arrivals. International standards do not allow detention for purposes of deterrence. There are also serious concerns about the conditions of immigration detention in the U.S., such as holding immigration detainees (including children) in criminal detention facilities, detention in isolated locations making access to legal counsel difficult, frequent transfers between detention facilities, and a significant number of credible allegations of mistreatment or abuse.

With regard to gender-based refugee claims, such as those based on domestic violence, honour crimes, and dowry deaths, Amnesty International has stressed that the U.S. record of granting status to women fearing such abuses is mixed at best. While some claims are successful, many are not. In Canada claims of this description are generally accepted, if credible and borne out by evidence that the government concerned is unwilling or unable to offer protection. Women fleeing gender-based human rights abuses who are denied access to the Canadian refugee system face a real likelihood of being denied protection in the United States.

Finally, the U.S. refugee system includes "expedited removal proceedings" which apply to refugee claimants who arrive in the United States with fraudulent or no documentation. This process lacks many of the basic procedural guarantees of fairness afforded to other refugee claimants, most notably no access to legal counsel at the outset of the process, and thus increases the risk that genuine refugees may be denied protection. In Amnesty International's experience, many genuine refugees are forced to flee their homes without proper documentation, because it is an unexpected emergency, because it is during armed conflict, or because it would be impossible or dangerous for an individual to obtain documents due to their political activities, ethnic identity or other status. Amnesty International had urged the Canadian government to ensure that no one would be denied access to Canada if they are likely to be subjected to expedited removal proceedings in the United States.

Amnesty International called on the Canadian government to negotiate an agreement that would protect individuals who are seeking access to Canada from the risks described above. We are disappointed that the agreement does not do so. In fact, the Regulatory Impact Analysis Statement accompanying the present regulations admits that there will likely be "differential impacts by gender" and that "Canada and the United States have different approaches to the treatment of claims based on gender-based persecution and in relation to those who arrive and make a refugee claim without appropriate documents" but offers no assurance that the agreement or regulations will be applied or interpreted so as to minimize the impact of these differences.

Amnesty International urges this Committee to call for amendments to the regulations that will address these and other concerns. There is a substantial likelihood that this agreement will compel individuals, whose preferred destination for seeking protection is Canada because they are advancing a gender-based claim or do not want to face unlawful detention or expedited removal proceedings in the United States, to turn to smugglers and embark on dangerous journeys to cross the border into Canada illegally and make refugee claims inside the country. Amnesty International has reported on disturbing human rights abuses associated with smuggling and illegal border crossings around the world. For that additional reason, it is imperative that these regulations be amended to minimize the risk that individuals who may have very good reasons for preferring Canada over the United States will feel pushed to take potentially life-threatening chances.

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Recommendations:

1. Exceptions should be created in the regulations for refugee claimants who:
1. are likely to be detained in the United States for reasons or in conditions that do not meet international standards;
2. make claims based on a fear of gender-based persecution; or
3. are likely to face expedited removal proceedings in the United States
2. There should be a discretionary power included in the regulations, beyond section 159.6, which would empower decision-makers to exempt other individuals or groups of individuals from application of the agreement when that is necessary to protect their basic human rights.
3. Given that decisions that will be made in application of the regulations will involve qualitative determinations with potentially grave consequences, decision-making should be entrusted to a division of the Immigration and Refugee Board. If decision-making remains the responsibility of immigration officers it should include an internal review mechanism.
4. This agreement and these regulations are being adopted at a time when there are growing concerns that the U.S. government is treating immigrants and refugees more harshly and discriminatorily. The agreement itself calls for it to be reviewed after one year. Amnesty International considers that in the present climate, a review before that date is needed, and urges that the regulations be amended to require a public review, by this Standing Committee, within six months of implementation.

Amnesty International Proposed Amendment to Regulation 159.6

Add to regulation 159.6, immediately following sub-section (c):

4. is without identity documents or is carrying fraudulent identity documents and would therefore be detained in the United States, unless detention is warranted because the claimant:
1. is unlikely to appear for examination, a hearing, or removal from the United States,
2. is a danger to the public, or
3. is a foreign national whose identity has not been established, taking into account the factors set out in paragraphs 245 to 249 of the Immigration and Refugee Protection Regulations;
5. is without identity documents or is carrying fraudulent identity documents and would therefore be subjected to expedited removal proceedings in the United States;
6. is likely to be detained in the United States in a facility that does not meet international standards concerning the treatment of detainees; or
7. is basing a claim for refugee protection on the ground of gender-related persecution.